In the legal vernacular, this statement made in extremis is called a “dying declaration.” Specifically, a dying declaration is made by a conscious individual who believes death is imminent and communicates information regarding the cause or circumstances surrounding their death. This information can be admitted as evidence in some cases and serve as a cornerstone for a successful, or unsuccessful, prosecution and subsequent conviction of the alleged perpetrator.
Dying declarations have historically been considered an exception to the hearsay rule, which prohibits the introduction of testimony by unavailable witnesses. Medieval English courts birthed the principle Nemo moriturus praesumitur mentiri, “a dying person is not presumed to lie,” which has long been clutched at the chest of victim activists for two reasons: 1) It may be the only evidence available for the deceased who was the only eyewitness to the occurrence; and 2) A dying person has lost all motive of bearing falsehood.
For decades there have been innumerable court cases examining the dying declaration hearsay rule-its applicability, its current fit in modern jurisprudence, its admissibility, its definition, whether the premise of dying declarations is antiquated, and more. Over time, these questions have clarified some of the inherent ambiguities surrounding practical use in criminal cases, but those who question its premise argue that societal paradigms regarding truth and near-death situations have metamorphosed over time.
In contemporary jurisprudence, many legal practitioners and scholars have re-examined the long-held practice of admitting dying declarations as fact and question its inherent merits. Why is it always assumed death and honesty are inextricably entwined? For years, there has been much controversy and ongoing debate about the admissibility of dying declarations in both state and federal courts. But what does the Constitution say?
THE RIGHT TO CONFRONT
The Sixth Amendment to the U.S. Constitution affords the accused the right to confront his or her witnesses-that is, the right to cross-examine witnesses who present evidence against them. When a witness testifies what was heard rather than what he or she experienced or witnessed, that’s considered hearsay evidence and is generally inadmissible. The Sixth Amendment right of confrontation is enforced, at least partially, through rules against the admission of hearsay evidence in criminal and civil trials. Hearsay is defined in Rule 801 of the Federal Rules of Evidence as a statement made by a person outside of court, and the statement is offered to prove the truth of the information included in the statement.
There are, however, exceptions to the rule excluding hearsay, including Rule 803(4), which allows the use of statements made for medical diagnosis or treatment and describes the medical history, symptoms and cause for medical condition. Rule 804 sets out the hearsay exceptions in which the declarant isn’t available to testify in court, including the dying declaration exception that allows the admission of statements made by a person “while believing the declarant’s death to be imminent, and made about its cause or circumstance.”1 This exception applies to criminal homicide trials and to civil cases. The exceptions to the prohibition against hearsay evolved and expanded over the years based upon the concept that the evidence offered under the various exceptions was reliable.2
In 2005, the Supreme Court addressed the analysis that applies to confrontation clause objections and inaugurated a new, stricter standard for admission of hearsay statements under the confrontation clause. Under the former Ohio v. Roberts (1980) reliability test, the confrontation clause didn’t bar admission of an unavailable witness’s statement if the statement had an adequate “indicia of reliability.” That is, testimonial evidence under Roberts satisfied that test if it fell within a firmly rooted hearsay exception or had guarantees of trustworthiness.3Crawford v. Washington (2004) rejected the Roberts analysis, opining that the confrontation clause “commands, not that the evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”4 However, it is important to note that Crawford applies Sixth Amendment confrontation clause protection only to “testimonial” statements, including those made in prior court proceedings or specifically for investigative purposes to collect evidence for use in a prosecution.
STATEMENTS TO EMS
What have the courts ruled when confronted with dying declarations made to medical personnel? In Davis v. Washington (2006) the court ruled that a 9-1-1 call in which the victim named the assailant was non-testimonial and not a violation of the confrontation clause.5 In State v. Canon (2008), the court held that statements to ED personnel documented in the victim’s medical records were non-testimonial and therefore not barred by the confrontation clause, although statements made to a sexual abuse nurse examiner were considered testimonial since the nurse was trained by law enforcement agencies and conducted a structured interrogation that was designed to establish past events relevant to prosecution.6 In People v. West (2005), the court admitted the complainant’s statements to medical personnel regarding the identity of her attacker. The appellate court reversed, holding that the statements were testimonial hearsay because there were no direct links between the identity and fault of the perpetrator and separate statements concerning the cause of the symptoms and pain.7
Many victims, victim advocates,and legal practitioners cheer the admissibility of certain hearsay evidence-including dying declarations-particularly when the crux of a case depends on testimonial evidence otherwise unheard. However, there must be recognition that the voices of victims can be very powerful and not always applied in a manner that prescribes fairness to the accused. For this reason, contemporary legal scholars have stirred some debate about the inherent assumption that those about to die will tell the truth, and only the truth, without retribution, loss of memory, clouded judgment or fear of eternal demise.
The use of dying declarations isn’t without critics. As Aviva Orenstein wrote in her article “Her last words: Dying declarations and modern confrontation jurisprudence”:
“As the Supreme Court of the United States stated in Carver II, ‘[a] dying declaration by no means imports absolute verity.’ Carver II proceeded to explain that the ‘history of criminal trials is replete with instances where witnesses, even in the agonies of death, have through malice, misapprehension or weakness of mind made declarations that were inconsistent with the actual facts.’ And as the New York Court of Appeals explained: ‘Dying declarations are dangerous, because [they are] made with no fear of prosecution for perjury.'”8
Dying declarations made to EMTs and paramedics may later be presented as evidence in court, and must be accurately documented. Photo A.J. Heightman
Several cases specifically involve the application of confrontation clause issues involving dying declarations made to EMTs and paramedics during the course of their duties: Pennsylvania v. Frederick (1985); Commonwealth v. Prince Moses (2002); United States v. Taylor (2003); Williams v. State of Florida (2007); and Kansas v. Jones (2008).9-13 Although the particular circumstances are unique in each case, the courts have consistently held that dying declarations made to EMTs and paramedics are non-testimonial. Most courts recognize that the role of EMTs and paramedics is to provide medical care for persons in need, not to gather information from the patient to satisfy investigative purposes. There’s been at least one case, however, that examined the necessity and rationale for asking a patient questions seemingly for the purpose of assisting law enforcement.
In Kansas v. Jones (2008), the victim was shot multiple times. One or more of the bullets severed the patient’s spinal cord; consequently, he was paralyzed in all four extremities and eventually died. The patient asked the paramedic if he was going to die. The attending paramedic-knowing the criticality of his patient’s condition-didn’t answer his patient’s question directly, but rather stated he’d do everything he could to keep him from dying. En route to the hospital, the patient identified his attacker after the attending paramedic posed a series of questions to him in the back of the ambulance regarding the circumstances of the crime. This is the proverbial red flag: acting as an investigative arm for law enforcement rather than obtaining information to facilitate better patient care.
Were the questions posed by the paramedic regarding the crime necessary to administer medical care? Not really. Although the paramedic testified that by having the patient talk to him he could ensure airway patency and establish level of consciousness, could other questions, such as obtaining a SAMPLE (signs/symptoms, allergies, medications, past medical history, last oral intake, events leading up to present illness) history, have achieved the same result? Most likely.
The admissibility of a dying declaration becomes questionable when: 1) the interview was part of or meant to facilitate a governmental investigation; and 2) a statement was made to learn what happened in the past. In this case, the paramedic conceded any information gathered from the patient regarding their attacker helps the police when there is a short scene time and no time for police interrogations. Given that, the court ruled this paramedic acted as part of the governmental arm trying to help law enforcement collect information about past events.
After closely examining the scenario, the patient’s statements to the paramedic were ruled testimonial by the court and admission of these statements would have violated the defendant’s right to confront. But this isn’t the end of the story. Remember the exceptions? The Kansas Supreme Court ultimately ruled the dying declaration was testimonial, but was admissible under the dying declaration exception to the hearsay rule. The reason, the court stated, rested on the medical condition and mental state of the patient, who “was both on the brink of death and knew he was dying.”13 This ruling was citing the Rules of Evidence KSA 60-460, which sets out the hearsay exceptions including the dying declaration in subsection (e), which states:
“Dying declarations: A statement by a person unavailable as a witness because of the person’s death if the judge finds that it was made 1) voluntarily and in good faith, and 2) while the declarant was conscious of the declarant’s impending death and believed that there was no hope of recovery.”
Is the foreknowledge of imminent death easy to define? EMTs, paramedics, physicians and nurses may easily identify a patient near death based on the nature and gravity of injuries. It may not be so clear cut in legal jurisprudence, however.
DEFINING IMMINENT DEATH
In the case of Commonwealth v. Moses (2002), Godfrey Jenkins was shot four times by the defendant, Prince Moses, over a drug deal. En route to the hospital, Jenkins told the EMT he was shot by “Prince.” Jenkins died the next day. Although the defendant appealed the decision by the lower court to admit the victim’s statements, the grounds for the appeal were quite different.10
Rather than arguing the right to confront, the defendant appealed on the grounds the state failed to prove the victim thought he was going to die imminently. The court disagreed, weighing heavily the testimony of the EMT. The EMT stated Jenkins was scared, in intractable pain and asked if he was going to die. Considering the nature and extent of the wounds suffered by the victim-four gunshot wounds with two to the chest-the court believed the victim’s dying declaration was made in the belief of imminent death. The court added, “A victim’s belief that death is impending may be inferred from the nature of the victim’s injury and the victim’s conduct.”10 This insinuates the “victim’s injury” and “victim’s conduct” may weigh heavily on thorough documentation and conscientious testimony from the EMT or paramedic.
DOCUMENTING A DYING DECLARATION
A savvy defense attorney may attempt to suppress the admission of a dying declaration, arguing their client has the constitutional right to cross-examine their accuser in order to receive a fair and impartial trial. As an EMS provider, this means the defense will attempt to suppress your patient care report (PCR) as well as your testimony regarding the events that transpired during the course of the call in order to render them inadmissible by the judge.
It is these two pieces of valuable evidence that serve as the voice, and the vessel, for the now deceased victim for whom you rendered care and will, in all likelihood, have profound implications for the strength of the case on either side of the aisle. This is the precise reason why you need to take extra care in documenting these calls.
Paramedics can be less than enthusiastic when writing PCRs. We check the same boxes, transcribe our favorite catchphrases, plug in the expected mnemonics and abbreviations, and then sign our names. But in cases where a dying declaration looms in the back of your ambulance like a thick fog, you need to embrace it for what it is: a key piece of evidence that can unlock the answer of whodunit. This isn’t an occasion to be mediocre or careless in your documentation; instead, be diligent, meticulous and, most importantly, accurate. Your understanding and recollection of events may be called into question by legal experts who want to use your PCR as supporting evidence for either the prosecution or the defense.
There are five things EMS providers should remember when encountering a dying declaration situation:
1. Don’t confuse priorities. Your role as an EMS provider is to make any and all efforts to save the life of your patient, not conduct a criminal investigation. If your patient spontaneously offers information that has potential evidentiary value, then document it in quotation marks. But, there’s a caveat. If, after identifying and treating life-threatening injuries, you have the opportunity to ask questions regarding the alleged crime that will serve a bifurcated purpose, then seize that opportunity carefully. As ruled in Kansas v. Jones, you don’t want to be accused of acting as an arm for law enforcement. There’s information to be gathered, however, that may assist both law enforcement and medical personnel in the ED. For example, can the patient tell you what type of caliber or weapon was used? How far away was the alleged perpetrator when the shot was fired? Make your questions pointed but brief, then document your patient’s responses in quotations marks.
2. Mental status is important. Defense attorneys may try to argue the victim was confused and disoriented, and therefore not a reliable source of information. Similarly, the defense may go to great lengths to question the efficacy of a traumatized brain and its ability to process information. Document your patient’s mental status and include in your narrative how you determined that status. A simple “A/O
x 3″ may not satisfy an inquisitive defense attorney or a jury. How do you know the patient is alert and oriented? What questions did you ask to make that determination? What else did the patient say that may help the prosecution convince a judge or jury the patient knew what they were saying despite their grievous injuries?
3. Construct an honest narrative that clearly reflects the gravity of the patient’s condition. Paint a picture with words that leaves no question that your patient was in critical condition. However, remain objective. Although this list isn’t comprehensive, include information such as the mechanism of injury, physical exam findings, any statements indicating the feeling of impending doom, vital signs, neurological status, known or suspected blood loss, integumentary status and pupillary response. This isn’t the time to short-change your patient by writing a sloppy or vague PCR. Instructors frequently tell paramedic students there’s no such thing as over-documentation when you have a victim of crime.
4. Dot all Is and cross all Ts. In other words, make sure all words in your narrative are spelled correctly. Avoid grammatical errors. Your PCR is going to cross many sets of hands prior to and during a criminal case, particularly an alleged case of homicide. At some point, your PCR may be enlarged to a poster-sized evidentiary tool for everyone in the courtroom to scrutinize. A poorly written report may have you sinking in your witness chair in the midst of a contentious trial.
5. Immediately report any known dying declaration to law enforcement officials. Time may be of the essence in apprehending the alleged perpetrator, who may flee or is already in flight. Communicating this vital information may assist police in locating the offender in an expedited fashion. The fact you were told who the alleged assailant was doesn’t mean the responding officers were privy to that information.
If you follow these recommendations, your PCR may very well be a valuable piece of evidence for the prosecution. Remember, your patient care report serves as the voice for your victim, whose voice should never be silent-even in the wake of death.
1. Federal Rules of Evidence. Rule 804 (b)(2).
2. Fulkerson A, Patterson S. (2006.) Victimless prosecution of domestic violence in the wake of Crawford v. Washington. Forum on Public Policy. Retrieved Dec. 8, 2015, from www.forumonpublicpolicy.com/archive06/fulkerson.pdf.
3. Ohio v. Roberts, 448 U.S. 56 (1980)
4. Crawford v. Washington, 541 U.S. 36 (2004).
5. Davis v. Washington, 547 U.S. 813 (2006)
6. State v. Cannon, 254 S.W.3d 287 (2008)
7. People v. West, 823 N.E. 2d 82 (Ill.App.Ct. 2005)
8. Orenstein A. (2010.) Her last words: Dying declarations and modern confrontation jurisprudence. Articles by Maurer Faculty, Maurer School of Law at Indiana University. Retrieved Dec. 8, 2015, from www.repository.law.indiana.edu/facpub/6.
9. Pennsylvania v. Frederick, 508 Pa. 527 (1985).
10. Commonwealth v. Prince Moses, 436 Mass. 598 (2002).
11. United States v. Taylor, 293 F. Supp. 2d 884 (2003).
12. Williams v. State of Florida, 947 So.2d 517 (Fla. Dist. Ct. App, 2007).
13. Kansas v. Jones, 287 Kan.,559, 197 P.3d 815 (2008).